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2022 DIGILAW 5 (UTT)

Rakesh Jain v. State of Uttarakhand

2022-01-04

RAVINDRA MAITHANI

body2022
JUDGMENT : : Ravindra Maithani, J. Challenge in this petition is made to the summoning order dated 21.12.2019 passed in Firm Messers Nature Trip Hospitality Service Vs. Rakesh Jain, by the court of Additional Chief Judicial Magistrate, Ramnagar, District Nainital. (for short “the case”) and the entire proceedings of the case. 2. Facts are in a very short sphere. The respondent no. 2, the complainant filed a complaint under section 138 of the Negotiable Instruments Act, 1881 (“the Act”) against the petitioners. According to it, the petitioner took Rs. 12 Lakhs loan from the complainant on the assurance that it would be returned within three months. The complainant advanced Rs. 11,50,032/- as loan to the petitioner. In repayment of the loan taken, the petitioner gave two cheques dated 06.07.2019 and 20.07.2019 of Rs. 5 Lakhs and Rs. 6 Lakhs respectively to the complainant. But, the cheques when presented were dishonoured. Finally, on 14.10.2019, notices were issued to the petitioner, which were served on him on 16.10.2019 and 22.10.2019. 3. The petitioner did not pay the amount within 15 days from the date of receipt of the notices. Thereafter, the complaint was filed on 30.11.2019. Cognizance was taken in the case. Petitioner was summoned. He appeared also in the case. On 12.11.2021, accusation was read over to the petitioner under section 251 of the Code of the Criminal Procedure, 1973 (for short ‘the Code’). Now, challenge is made to the summoning order as well as to the entire proceedings of the case. 4. Heard learned counsel for the parties and perused the record. 5. Learned counsel for the petitioner would submit that the complainant did not file complaint with the clean hands. He would raise the following points in his submission; (1) The cheques in question were given as security by the petitioner. Subsequently, the amount was repaid on 20.06.2019. (2) Despite the money having been paid, the complainant presented the cheques for payment, but, the petitioner directed the bank for stop payment. (3) The complaint is time-barred because notices were issued on 14.10.2019 and 15 days time since then expires on 29.10.2019. The complaint has been filed beyond a month from 29.10.2019. (4) Inquiry under section 202 of the Code has not been made in the case. (3) The complaint is time-barred because notices were issued on 14.10.2019 and 15 days time since then expires on 29.10.2019. The complaint has been filed beyond a month from 29.10.2019. (4) Inquiry under section 202 of the Code has not been made in the case. Such inquiry should have been conducted in view of the fact that the petitioner is a resident of a district outside the jurisdiction of the court. 6. This is a petition under section 482 of the Code. In case, prima facie, case is made out, no interference is warranted in this proceedings. Factual aspects may not be examined to appreciate the controversy. Such matters are to be left for decision during trial. The date of cheques is 06.07.2019 and 20.07.2019. Reference has been made to annexure-4, an authority allegedly issued by one S.S. Negi directing a Prakash Pathak to receive payment. This authority has purportedly been addressed to Mr. Jain. Based on it, it is argued that, in fact, one of the partners of the complainant’s firm, Sandhya Negi had authorized her husband S.S. Negi to receive the payment and S.S. Negi, in turn, authorized Mr. Pathak. Authority given by Sandhya Negi has been referred to as Annexure-4. But, according to this annexure-4, a Ms. Sandhya Negi had authorized S.S. Negi to sign an agreement, not to receive the money. Even otherwise, according to receipt annexure-5, the money was allegedly received by someone on 20.06.2019, As stated, the cheques in question have been issued in the month of July, 2019. Insofar as, giving the cheques and security is concerned, it does not absolve the drawer of the cheque from the consequence of offences under section 138 of the Act. 7. In the case of HMT Watches Limited Vs. M.A. Abida and Another (2015) 11 SCC 776 , the question of cheques having been given in security was considered and in paragraph 10 of the judgment, the Hon’ble Supreme Court observed “whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties.” 8. In the case of Sunil Todi and others vs. State of Gujarat and Another, 2021 SCC Online SC 1174, one of the lead arguments on behalf of the drawer of the cheque was that the cheques were issued as security towards payment. The Hon’ble Supreme Court in the case of Sunil Todi (supra) interpreted a term ‘debt’ and observed as hereunder; “30. Thus, the term debt also includes a sum of money promised to be paid on a future day by reason of a present obligation. A post-dated cheque issued after the debt has been incurred would be covered by the definition of ‘debt’. However, if the sum payable depends on a contingent event, then it takes the color of a debt only after the contingency has occurred. Therefore, in the present case, a debt was incurred after the second respondent began supply of power for which payment was not made because of the non-acceptance of the LCs'. The issue to be determined is whether Section 138 only covers a situation where there is an outstanding debt at the time of the drawing of the cheque or includes drawing of a cheque for a debt that is incurred before the cheque is encashed.” 9. Finally, in the case of Sunil Todi (supra) the Hon’ble Supreme Court observed in paragraph 54 of the judgment that “in the present case, it is evident that the principal grounds of challenge which have been set up on behalf of the appellants are all matters of defence at the trial.” 10. Even otherwise, Section 139 of the Act makes a presumption in favour of the holder. Learned counsel for the petitioner would submit that in his examination under section of the 251 of the Code, the petitioner has rebutted the presumption by giving statement that he had already repaid the amount involved in the cheque. But, this is not admitted position because according to the complaint, for payment of the loan, the petitioner had given two cheques, which when presented, were returned. Now, the question, as to whether the petitioner had repaid the loan or not, is the factual aspect. It has to be established by the petitioner during trial. 11. Insofar as question of limitation is concerned, according to Section 138 of the Act, proviso (c), the payment is required to be made within 15 days of the receipt of the said notice. It has to be established by the petitioner during trial. 11. Insofar as question of limitation is concerned, according to Section 138 of the Act, proviso (c), the payment is required to be made within 15 days of the receipt of the said notice. This proviso (c) is as hereunder; “Provided that nothing contained in this section shall apply unless— ……………………………………………………………… ……………………………………………………………… (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.” 12. Section 142(1)(b) gives a timeline within which, the complaint has to be filed. It is as hereunder; “142. Cognizance of offences.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— ……………………………………………………………… ……………………………………………………………… ………………………………………… (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:” 13. The payment is required to be made within 15 days from the receipt of the notice as per proviso (c) to Section 138, as quoted hereinabove. It is the categorical case in the complaint that the notices were served on the petitioner on 16.10.2019. Fifteen days expires on 31.10.2019. Within a month thereafter, on 30.11.2019, the complaint has already been filed, which is within such time as prescribed under section 141(1)(b) of the Act. Therefore, it cannot be said that the complaint is time-barred. 14. It is also argued that in the instant case, inquiry under section 202 of the Code ought to have been done because the petitioner is a resident to a place beyond the jurisdiction of the court. This argument has no force because in the petition itself, the petitioner has written his present address within district Nainital, where the court is situated, therefore, in this case, it will not be mandatory for the court to inquire a complaint under section 202 of the Code. 15. In view of the above, this Court is of the view that there is no reasons to make any interference in the matter. Accordingly, the petition deserves to be dismissed. 16. The petition is dismissed.